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*** FISMA & OMB Memorandum M-07-16
February 14, 2018
David S. Maltz Duke Energy Corporation
[email protected]
Re: Duke Energy Corporation Incoming letter dated December 28,
2017
Dear Mr. Maltz:
This letter is in response to your correspondence dated December
28, 2017 and February 13, 2018 concerning the shareholder proposal
(the “Proposal”) submitted to Duke Energy Corporation (the
“Company”) by John Chevedden (the “Proponent”) for inclusion in the
Company’s proxy materials for its upcoming annual meeting of
security holders. We also have received correspondence from the
Proponent dated January 1, 2018, January 8, 2018, January 12, 2018,
January 19, 2018, January 28, 2018, February 4, 2018 and February
13, 2018. Copies of all of the correspondence on which this
response is based will be made available on our website at
http://www.sec.gov/ divisions/corpfin/cf-noaction/14a-8.shtml. For
your reference, a brief discussion of the Division’s informal
procedures regarding shareholder proposals is also available at the
same website address.
Sincerely,
Matt S. McNair Senior Special Counsel
Enclosure
cc: John Chevedden ***
http:http://www.sec.govmailto:[email protected]
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February 14, 2018
Response of the Office of Chief Counsel Division of Corporation
Finance
Re: Duke Energy Corporation Incoming letter dated December 28,
2017
The Proposal requests that the board take each step necessary so
that each voting requirement in the Company’s charter and bylaws
that calls for a greater than simple majority vote be eliminated
and replaced by a requirement for a majority of the votes cast for
and against applicable proposals, or a simple majority in
compliance with applicable laws. If necessary, this means the
closest standard to a majority of the votes cast for and against
such proposals consistent with applicable laws.
There appears to be some basis for your view that the Company
may exclude the Proposal under rule 14a-8(i)(10). In this regard,
we note your representation that the Company will provide
shareholders at its 2018 annual meeting with an opportunity to
approve an amendment to its certificate of incorporation to reduce
the 80% requirement in Article Seventh of the Company’s certificate
to a simple-majority requirement. Accordingly, we will not
recommend enforcement action to the Commission if the Company omits
the Proposal from its proxy materials in reliance on rule
14a-8(i)(10). In reaching this position, we have not found it
necessary to address the alternative basis for omission upon which
the Company relies.
Sincerely,
Evan S. Jacobson Special Counsel
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DIVISION OF CORPORATION FINANCE INFORMAL PROCEDURES REGARDING
SHAREHOLDER PROPOSALS
The Division of Corporation Finance believes that its
responsibility with respect to matters arising under Rule 14a-8 [17
CFR 240.14a-8], as with other matters under the proxy rules, is to
aid those who must comply with the rule by offering informal advice
and suggestions and to determine, initially, whether or not it may
be appropriate in a particular matter to recommend enforcement
action to the Commission. In connection with a shareholder proposal
under Rule 14a-8, the Division’s staff considers the information
furnished to it by the company in support of its intention to
exclude the proposal from the company’s proxy materials, as well as
any information furnished by the proponent or the proponent’s
representative.
Although Rule 14a-8(k) does not require any communications from
shareholders to the Commission’s staff, the staff will always
consider information concerning alleged violations of the statutes
and rules administered by the Commission, including arguments as to
whether or not activities proposed to be taken would violate the
statute or rule involved. The receipt by the staff of such
information, however, should not be construed as changing the
staff’s informal procedures and proxy review into a formal or
adversarial procedure.
It is important to note that the staff’s no-action responses to
Rule 14a-8(j) submissions reflect only informal views. The
determinations reached in these no-action letters do not and cannot
adjudicate the merits of a company’s position with respect to the
proposal. Only a court such as a U.S. District Court can decide
whether a company is obligated to include shareholder proposals in
its proxy materials. Accordingly, a discretionary determination not
to recommend or take Commission enforcement action does not
preclude a proponent, or any shareholder of a company, from
pursuing any rights he or she may have against the company in
court, should the company’s management omit the proposal from the
company’s proxy materials.
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*** FISMA & OMB Memorandum M-07-16
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*** FISMA & OMB Memorandum M-07-16
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( -, DUKE ENERGY"
December 28, 2017
VIA E-MAIL Office of Chief Counsel Division of Corporation
Finance U.S. Securities and Exchange Commission 100 F Street, N.E.
Washington, DC 20549
David S. Maltz Vice President. Legal and
Assistant Corporate Secretary
550 S. Tryon Street Charfotte, NC 28202
Mailing Address: Mail Code DEC45A/ P.O. Box 1321
Charlotte, NC 28201
o: 704.382.34TT f: 980.373.5201
[email protected]
Re: Omission of Shareholder Proposal Submitted By John
Chevedden
Dear Sir or Madam:
Pursuant to Rule 14a-8(j)(l) promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), Duke Energy
Corporation (the "Corporation") requests confirmation that the
staff of the Division of Corporation Finance (the "Staff') of the
U.S. Securities and Exchange Commission will not recommend any
enforcement action if the Corporation omits from its proxy
solicitation materials ("Proxy Materials") for its 2018 Annual
Meeting of Shareholders (the "2018 Annual Meeting") a proposal (the
"Proposal") submitted to the Corporation by John Chevedden (the
"Proponent").
This letter provides an explanation of why the Corporation
believes that it may exclude the Proposal and includes the
attachments required by Rule 14a-8G). In accordance with Staff
Legal Bulletin No. 14D (Nov. 7, 2008), this letter and its exhibits
are being delivered by e-mail to [email protected]. A
copy of this letter and its attachments are also being sent on this
date to the Proponent in accordance with Rule 14a~8(j), informing
the Proponent of the Corporation's intention to omit the Proposal
from the 2018 Annual Meeting Proxy Materials. We also wish to take
this OP,portunity to inform the Proponent that if he submits
additional
I • correspondence to the Staff with respect to the Proposal, a
copy of that correspondence should also be furnished to the
Corporation, addressed to the undersigned, pursuant to Exchange Act
Rule 14a-8(k). This letter is being submitted not less than 80 days
before the filing of the Corporation's Proxy Materials, which the
Corporation intends to file on or around March 22, 2018.
#626712
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THE PROPOSAL
The Proposal requests that:
"our board take each step necessary so that each voting
requirement in our charter and bylaws that calls for a greater than
simple majority vote be eliminated, and replaced by a requirement
for a majority of the votes cast for and against applicable
proposals, or a simple majority in compliance with applicable laws,
If necessary this means the closest standard to a majority of the
votes cast for and against such proposals consistent with
applicable laws. It is important that our company take each step
necessary to adopt this proposal topic completely."
A copy of the Proposal and supporting statement is attached
hereto as Exhibit A.
REASONS FOR EXCLUSION OF PROPOSAL
l. The Corporation believes that the Proposal may be properly
omitted pursuant to Rule 14a-8(1)(10) because the Proposal will be
substantially implemented.
Rule 14a-8(i)(l0) permits the exclusion of a proposal that the
Corporation has substantially implemented. The Proposal asks for
the board "to take each step necessary" to remove the supermajority
voting requirements in the Corporation's charter and bylaws. Prior
to the mailing of the Corporation's Proxy Materials, the Board of
Directors will formal approve an amendment to the Amended and
Restated Certificate of Incorporation (the "Certificate") to reduce
the 80% voting requirement in Article Seventh of the Corporation's
Certificate of Incorporation to a simple majority of the
outstanding shares of stock entitled to vote and will also
recommend in the Proxy Materials that shareholders approve such
amendments al the 2018 Annual Meeting of Shareholders.
2. The Corporation believes that the Proposal may be properly
omitted pursuant to Rule 14a-8(i)(3) because the Proposal is
impermissibly vague and indefinite so as to be inherently
misleading.
DISCUSSION
I. Article Seventh of the Corporation's Certificate is the only
provision in the Corporation's Certificate or By-Laws which
requires greater than a simple majority vote of the shareholders to
amend the provision.
Article Seventh states that "this ARTICLE SEVENTH and sections
(b) and (d) of ARTICLE FIFTH may not be supplemented, amended,
altered, changed or repealed in any respect, nor may any provision
inconsistent therewith be adopted, unless such supplement,
amendment, alteration, change or repeal is approved by the
affirmative vote of the holders of at least 80% of the combined
voting power of the then outstanding shares of stock of all classes
of the Corporation entitled to vote generally in the election of
directors, voting together as a single class." Article Seventh also
states that any other provision of the Certificate may be amended
in accordance
2
-
with the laws of the State of Delaware. Section 242(b )( l) of
the Delaware General Corporation Law provides that a corporation's
certificate of incorporation may by amended by a majority vote of
the outstanding shares entitled to vote.
Copies of the Certificate and By-Laws are attached as Exhibit
Band Exhibit C to this no-action request. A copy of the proposed
amendment to Article Seventh to remove the only supermajority
requirements in the Certificate is attached hereto as Exhibit
D.
The Staff has previously stated that Rule 14a-S(i)( l 0) was
designed to "avoid the possibility of shareholders having to
consider matters which have already been favorably acted upon by
the management..." Exchange Act Release No. 12598 (July 7,
1976).
The Staff has consistently concurred that proposals calling for
the elimination of supellllajority voting provisions such as the
one which is the subject of the Proposal are excludable under Rule
l 4a-8(i)( I 0) when corporations have taken steps to submit
amendments to remove those provisions to shareholders at upcoming
meetings. See, e.g. Qualcomm (Dec. 8, 2017; The Southern Company
(Feb. 24, 2017); The Southern Company (Feb. 26, 2016); The Brink's
Company (Feb. 5, 2015); Visa Inc. (Nov. 14, 2014); Medtronic, Inc.
(June 13, 2013) (each concurring with the exclusion of a proposal
to eliminate provisions in a corporation's governing documents
which require a supermajority vote when the corporation's board
approved amendments to the governing documents that would replace
such provisions with a simple majority requirement.) Furthermore,
in the cited examples, the Staff has also concurred that a proposal
requesting that a board take each step necessary to amend a
corporation's governing documents had been substantially
implemented when the board lacked the authority to unilaterally
adopt the amendments to a corporation's certificate of
incorporation or bylaws but had submitted such amendments to the
shareholders to approve. See also AECOM (Nov. I, 20I 6); McKesson
Corp (Apr. 8, 2011 ); Applied Materials, Inc. (Dec. 19, 2008).
Because these matters are directly on point to the issue discussed
herein, the Proposal is excludable under Rule 14a-8(i)( 10) as it
was in the cited examples.
Finally, the Staff has consistently concurred with the exclusion
of a proposal under Rule 14a-8(i)(lOJ when a corporation notified
the Staff that its board of directors intends to take certain
follllal actions that will substantially implement a proposal and
then supplements its no-action request with a notification to the
Staff after follllal action has been taken by the board of
directors. See, e.g. AGL Resources Inc. (Feb. 11, 2015); The
Brink's Company (Feb. 5, 2015); Visa, Inc. (Nov. 14, 2014);
Starbucks Corp. (Nov. 27, 2012). Because the Corporation's Board
intends to formally approve the proposed amendment to the
Certificate at its late February meeting and the Corporation has
committed that it will notify the Staff once such formal approval
has occurred, the Proposal may be excluded under Rule
14a-S(i)(l0).
Conclusion. The Corporation believes that it may exclude the
Proposal pursuant to Rule 14a-8(i)(10) because the Proposal is
being substantially implemented by the Corporation through the
inclusion of a proposal to be voted on by shareholders in the
Corporation's Proxy Materials for the 2018 Annual Meeting to reduce
the 80% requirement in Article Seventh of the Corporation's
Certificate to a simple majority requirement.
3
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2. The Proposal may be excluded under Rule 14a-8(i)(3) because
it is impermissibly vague and indefinite so as to be Inherently
misleading.
The Proposal fails to define critical terms and otherwise
provide guidance on what is necessary to implement it. The Staff
has concurred many times that shareholder proposals that are vague
and indefinite are inherently misleading and therefore excludable
under Rule 14a-8(i)(3) because shareholders cannot make an informed
decision on the merits of a proposal without at least knowing what
they are voting on. See Staff Legal Bulletin No. 14B (Sep. 15,
2004)(noting that "neither the stockholders voting on the proposal,
nor the company in implementing the proposal (if adopted), would be
able to determine with any reasonable certainty exactly what
actions or measures the proposal requires.") Furthermore, the Staff
has concurred that a shareholder proposal was sufficiently
misleading so as to justify its exclusion when neither the
shareholders nor the company would be able to determine with any
reasonable certainty exactly what actions or measures the proposal
requires. Pfizer Inc. (Dec.. 22, 2014 ).
The Staff has consistently concurred with the exclusion of
proposals which do not define critical terms or phrases or
otherwise provide guidance on what is required to implement the
proposals. In Bank ofAmerica Corp. (Feb. 25, 2008), the Staff
concurred with the exclusion of a proposal requesting that the
corporation amend its policies to "observe a moratorium on all
financing, investment and further involvement in activities that
support MTR" (mountain top removal) projects but did not define
what would constitute "further involvement" and "activities that
support MTR [projects]." See also Eastman Kodak Co. (Mar. 3,
2003)(proposal seeking to cap executive salaries at$ I million,
including bonus, perks and options, failed to define various terms
and how options were to be valued and was therefore excludable) and
Am£rican Telephone and Telegraph Company (Jan. 12, 1990) (proposal
seeking to prohibit a corporation from "interfering" with
"government policy" of foreign governments was excluded as it would
require, if implemented, subjective determinations regarding what
is considered to be "interference" and "government policy" as well
as when the proposal would apply).
The Proposal fails to give necessary details to explain what is
meant by the language "take each step necessary." Consequently,
shareholders cannot make an informed decision on what they are
being asked to vote on and the Corporation would be unable to
determine whether it has been responsive in implementing the
Proposal. This ambiguity could result in a great amount of
interpretation and differing conclusions by the Corporation and its
shareholders.
Proponent has previous! y argued in several of the previously
cited examples that the Board did not take each step necessary and
yet failed to include in the Proposal what he believes to be the
all the steps necessary to properly implement the Proposal. In The
Brinks Company (avail. Feb. 5, 2015), the Proponent argued that
hiring a proxy solicitor to advise on the most favorable approach
to take was necessary to take all necessary steps. In The Southern
Company (avail. Feb. 24, 2017}, the Proponent implied that the
company should have hired a proxy solicitor, put more effort into
its solicitation for the matter, and even adjourned their
long-scheduled annual shareholder meeting when the matter failed to
receive the number of shares necessary to pass. Without more
information in the Proposal detailing what the Proponent actually
believes to be required to "take each necessary step," As the
Proponent, himself has demonstrated through his prior letters to
the SEC, "each necessary step" is a vague and misleading standard.
Without more
4
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information in the Proposal detailing what specific actions are
necessary to be deemed "each necessary step," the shareholders
cannot know what, in particular, they are being asked to approve
and therefore cannot make an informed decision regarding their vote
on this matter.
Conclusion. For the reasons stated above, we respectfully submit
that the Proposal is impermissibly vague and indefinite so as to be
inherently misleading and should therefore be excluded from the
Corporation's Proxy Materials for the 2018 Annual Meeting pursuant
to Rule 14a-8(i)(3).
CONCLUSION
The Corporation respectfully requests that the Staff advise that
it will not recommend any enforcement action if the Corporation
excludes the Proposal from its Proxy Materials pursuant to
14a-8(i)(l0). If the Staff does not concur with the Corporation's
position, we would appreciate an opportunity to confer with the
Staff concerning this matter prior to the issuance of a response.
In such case, or if you have any questions or desire any further
information, please contact the undersigned at (704) 382-3477.
Very truly yours,
cc: Julia S. Janson, Executive Vice President, External Affairs,
Chief Legal Officer and Corporate Secretary
John Chevedden
5
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EXHIBIT A
(See attached copy of the Proposal.)
-
*** FISMA & OMB Memorandum M-07-16
Ms. Julie S. Janson Corporate Secretary Duke Energy Corporation
(DUK) 550 S. Tryton Street Charlotte, NC 28202 PH: 704-382-3853 FX:
704 382-3814
Dear Ms. Janson,
JOHN CHl!:VEDDEN
IEV16 fFlJ ,_ 2 NO U a-o11
This Rule l 4a-8 proposal is respectfully submitted in support
of the long-term performance of our company.
This Rule l 4a-8 proposal is intended as a low-cost method to
improve company performance -especially compared to the substantial
captializtion of our company.
This proposal is for the next annual shareholder meeting. Rule
14a-8 requirements will be met including the continuous ownership
of the required stock value until after the date of the respective
shareholder meeting and presentation of the proposal at the annual
meeting. This submitted format, with the shareholder-supplied
emphasis, is intended to be used for definitive proxy
publication.
Your consideration and the consideration of the Board of
Directors is appreciated in support of the long-term perfonnance of
our company. Please acknowledge receipt of this proposal by email
to
Sincerely,
~--ek.--U Chevedden
cc: David S. Maltz Assistant Corporate Secretary PH:
704-382-3477 FX: 980-373-5201 Nancy Wright Associate General
Counsel PH: 704-382-9151 FX: 980-373-5265 Joseph P. Crapster
****** ***
***
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[DUK: Rule 14a-8 Proposal, November I 9, 2017, Revised November
22, 2017]1 l-22 {This line and any line above it - Not for
publication.]
Proposal (4] - Simple Majority Vote RESOLVED, Shareholders
request that our board take each step necessary so that each voting
requirement in our charter and bylaws that calls for a greater than
simple majority vote be eliminated, and replaced by a requirement
for a majority of the votes cast for and against applicable
proposals, or a simple majority in compliance with applicable laws.
Ifnecessary this means the closest standard to a majority of the
votes cast for and against such proposals consistent with
applicable laws. It is important that our company take each step
necessary to adopt this proposal topic completely.
Currently a 1%·minority can frustrate the will of our
79%-shareholder majority. In other words a 1 %-minority could have
the power to prevent shareholders from improving the quality our
corporate governance.
This proposal topic won from 74% to 88% support at Weyerhaeuser,
Alcoa, Waste Management, Goldman Sachs, FirstEnergy, McGraw-Hill
and Macy's. Toe proponents of these proposals included Ray T.
Chevedden and William Steiner.
Duke shareholders already voted 97% in favor ofthe topic of this
proposal at our 2017 annual meeting. Sadly our top management did
not put enough horsepower behind their failed 2017 proposal on the
topic ofthis proposal. If the failed 2017 management proposal would
have boosted executive pay - one can bet a lot more management
effort would have been devoted to it.
It is important to adopt the topic of this proposal so that
other issues ofaccountability to shareholders can then be addressed
more tboroughly. For instance Michael Browning may not be the
best-qualified person to be Lead Director. As Chairman of the
corporate governance committee, he could be the person most
responsible the lackluster 2017 management effort to adopt the
topic ofthis proposal. There is shareholder dissatisfaction with
Mr. Browning because he received up to 4-times as many negative
votes as other Duke directors. Plus Mr. Browning had an oversized
influence on our board since he had 3 seats on the 3 most important
board committees.
There also seems to be a problem with assigning directors to the
proper committees. The 4 directors who received the highest
negative votes controlled 75% of the Executive Pay Committee and
40% of the Audit Committee.
Sha.reowners are willing to pay a premium for shares of
companies that have excellent corporate governance. Supermajority
voting requirements have been found to be one of6 entrenching
mechanisms that are negatively related to company performance
according to "What Matters in Corporate Governance" by Lucien
Bebchuk, Alma Cohen and Allen Ferrell of the Harvard Law School.
Supermajority requirements are used to block initiatives supported
by most shareowners but opposed by a status quo management.
Please vote to enhance shareholder oversight of management:
Simple Majority Vote - Proposal [4] [The above line - ls for
publication.]
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*** FISMA & OMB Memorandum M-07-16
John Chevedden, sponsors this proposal.
Notes: This proposal is believed to conform with Staff Legal
Bulletin No. 14B (CF), September 15, 2004 including ( emphasis
added):
Accordingly, going forward, we believe that it would not be
appropriate for companies to exclude supporting statement language
and/or an entire proposal in reliance on rule 14a-8(1)(3) in the
following circumstances:
' • the company objec!B to factual assertions because they are
not supported; • the company objects to factual assertions that,
while not materially false or misleading, may be disputed or
countered; • the company objects to factual assertions because
those assertions may be interpreted by shareholders in a manner
that is unfavorable to the company, its directors, or its officers:
and/or • the company objects to statements because they rePresent
the opinion of the shareholder proponent or a referenced source,
but the statements are not identified specifically as such.
We believe that it is appropriate under rule 14a-8 for companies
to address these objections in their statements of opposition.
See also: Sun Microsystems, Inc. (July 21, 2005).
The stock supporting this proposal will be held until after the
annual meeting and the proposal will be presented at the llll!lual
meeting. Please acknowledge this proposal promptly by email
·
/
***
***
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*** FISMA & OMB Memorandum M-07-16
P
November 20, 2017
John R. Chevedden
To Whom II May Coneern:
P.O. Box 770001 Cincinnati, OH 45.277-0045
This letter is provided at the request of Mr. John R. Chevedden,
a customer of Fidelity Investments.
Please accept this letter as confirmation that as of the date of
this letter, Mr. Chevedden has continuously owned no fewer than the
share quantity listed in the following table in each of the
following securities, since October 1, 2016:
Seeli~, .... _ ·.-~, : ·' ,ClU$1P : ·., trr!ldfn«.iit'uiJmf'. :
,. ':Shiite ,r ·,11ifl". :. . " UII ..
Duke Ener«u Co=. 26441C204 DUK so DTE Ener= Comnanv 23333!107
DTE 50
Huntington Ingalls 446413106 HlI 30 Industries. Inc.
L3 Technolo2ies, Inc. 502413107 LLL 50 Eastman Chemical Co.
277432100 EMN 50 Bank of America Cnm. 060505104 BAC 200
The securities referenced in the preceding table are registered
in the name of National Financial Services LLC, a OTC participant
(DTC number: 0226) and Fidelity Investments subsidiary.
I hope you find this information helpful. lfyou have any
questions regarding this issue, please feel free to contact me by
calling 800-397-9945 between the hours of 8:30 a.m. and 5:00 p.m.
Central Time (Monday through Friday) and entering my extension
15838 when prompted.
Sincerely,
t: George Stasinopoulos Personal Investing Operations
Our File: W644869-20NOV17
Fidelity Brokerage Services: llC. Membe:n;: NYSE, SlPC.
***
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EXIHBITB
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
DUKE ENERGY CORPORATION
DUKE ENERGY CORPORATION, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), DOES
HEREBY CERTIFY AS FOLLOWS:
1. The name of the corporation is Duke Energy Corporation. The
name under which the corporation was originally incorporated was
Deer Holding Corp. The name of the corporation was changed to Duke
Energy Holding Corp. on June 21, 2005. The original Certificate of
Incorporation was filed with the Secretary of State of the State of
Delaware on May 3, 2005.
2. This Amended and Restated Certificate of Incorporation,
having been duly adopted in accordance with Sections 242 and 245 of
the General Corporation Law of the State of Delaware (the "DGCL")
and by the approval of the stockholders of the Corporation in
accordance with Section 211 of the DGCL, restates and integrates
and further amends the provisions of the Amended and Restated
Certificate of Incorporation as amended or supplemented heretofore.
As so restated and integrated and further amended, the Amended and
Restated Certificate of Incorporation (hereinafter, this
"Certificate of Incorporation") reads as follows:
ARTICLE FIRST
Name
The name of the corporation is Duke Energy Corporation.
ARTICLE SECOND
Registered Office
The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, City of Wilmington, County
of New Castle. The name of the registered agent of the Corporation
at such address is The Corporation Trust Company.
-
ARTICLE THIRD
Purpose
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the
DGCL.
ARTICLE FOURTH
Capital Stock
(a) The aggregate number of shares of stock that the Corporation
shall have authority to issue is two billion forty-four million
(2,044,000,000) shares, consisting of two billion (2,000,000,000)
shares of Common Stock, par value $0.001 per share (the "Common
Stock"), and forty-four million (44,000,000) shares of Preferred
Stock, par value $0.001 per share (the "Preferred Stock").
(b) The Board of Directors of the Corporation shall have the
full authority permitted by law, at any time and from time to time,
to divide the authorized and unissued shares of Preferred Stock
into one or more classes or secies and, with respect to each such
class or series, to determine by resolution or resolutions the
number of shares constituting such class or series and the
designation of such class or series, the voting powers, if any, of
the shares of such class or series, and the preferences and
relative, participating, optional or other special rights, if any,
and any qualifications, limitations or restrictions thereof, of the
shares of any such class or series of Preferred Stock to the full
extent now or hereafter permitted by the Jaw of the State of
Delaware. The powers, preferences and relative, participating,
optional and other special rights of each class or series of
Preferred Stock and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other classes
or series at any time outstanding.
(c) Subject to applicable law and the rights, if any, of the
holders of any class or series of Preferred Stock or any class or
series of stock having a preference over or the right to
participate with the Common Stock with respect to the payment of
dividends, dividends may be declared and paid on the Common Stock
at such times and in such amounts as the Board of Directors of the
Corporation in its discretion shall determine. Nothing in this
ARTICLE FOURTH shall limit the power of the Board of Directors to
create a class or series of Preferred Stock with dividends the rate
of which is calculated by reference to, and the payment of which is
concurrent with, dividends on shares of Common Stock.
(d) In the event of the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, subject to the rights
of the holders of any class or series of the Preferred Stock, the
net assets of the Corporation available for distribution to
stockholders of the Corporation shall be distributed pro rata to
the holders of the Common Stock in accordance with their respective
rights and interests. If the assets of the Corporation are not
sufficient to pay the amounts, if any, owing to holders of shares
of Preferred Stock in full, holders of all shares of Preferred
Stock will participate in the
-
distribution of assets ratably in proportion to the full amounts
to which they are entitled or in such order or priority, if any, as
will have been fixed in the resolution or resolutions providing for
the issue of the class or series of Preferred Stock. Neither the
merger or consolidation of the Corporation into or with any other
corporation, nor a sale, transfer or lease of all or part of its
assets, will be deemed a liquidation, dissolution or winding up of
the Corporation within the meaning of this paragraph, except to the
extent specifically provided in any certificate of designation for
any class or series of Preferred Stock. Nothing in this ARTICLE
FOURTH shall limit the power of the Board of Directors to create a
class or series of Preferred Stock for which the amount to be
distributed upon any liquidation, dissolution or winding up of the
Corporation is calculated by reference to, and the payment of which
is concurrent with, the amount to be distributed to the holders of
shares of Common Stock.
(e) Except as otherwise required by law, as otherwise provided
herein or as otherwise determined by the Board of Directors as to
the shares of any class or series of Preferred Stock, the holders
of Preferred Stock shall have no voting rights and shall not be
entitled to any notice of meetings of stockholders.
(f) Except as otherwise required by law and subject to the
rights of the holders of any class or series of Preferred Stock,
with respect to all matters upon which stockholders are entitled to
vote or to which stockholders are entitled to give consent, the
holders of any outstanding shares of Common Stock shall vote
together as a class, and every holder of Common Stock shall be
entitled to cast thereon one vote in person or by proxy for each
share of Common Stock standing in such holder's name on the books
of the Corporation: provided, however, that, except as otherwise
required by Jaw, or unless provided in any certificate of
designation for any class or series of Preferred Stock, holders of
Common Stock, as such, shall not be entitled to vote on any
amendment to this Certificate of Incorporation (including any
certificate of designations relating to any class or series of
Preferred Stock) that relates solely to the terms of one or more
outstanding classes or series of Preferred Stock if the holders of
such affected class or series are entitled, either separately or
together with the holders of one or more other such classes or
series, to vote thereon pursuant to this Certificate of
Incorporation (including any certificate of designations relating
to any class or series of Preferred Stock) or pursuant to
applicable law. Subject to the rights of the holders of any class
or series of Preferred Stock, stockholders of the Corporation shall
not have any preemptive rights to subscribe for additional issues
of stock of the Corporation and no stockholder will be permitted to
cumulate votes at any election of directors.
ARTICLE FIFTH
Board of Directors
(a) The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors.
(b) Except as otherwise fixed by or pursuant to provisions of
ARTICLE FOURTH relating to the rights of the holders of any series
of Preferred Stock, the number of directors of the Corporation
shall not be less than nine (9) nor more than eighteen (I 8), as
may be for.ed from time to time by the Board of Directors.
(c) A director may be removed from office with or without cause;
provided, however, that, subject to applicable Jaw, any director
elected by the holders of any series of Preferred Stock
-
may be removed without cause only by the holders of a majority
of the shares of such series of Preferred Stock.
(d) Except as otherwise fixed by or pursuant to provisions of
ARTICLE FOURTH relating to the rights of the holders of any series
of Preferred Stock, newly created directorships resulting from any
increase in the number of directors and any vacancies on the Board
of Directors resulting from death, resignation, disqualification,
removal or other cause shall be filled only by the affirmative vote
of a majority of the remaining directors then in office, even
though less than a quorum ofthe Board of Directors. Any director
elected in accordance with the preceding sentence shall hold office
until the aext succeeding annual meeting of stockholders and until
his or her successor shall be elected and shall qualify, subject,
however, to prior death, resignation, retirement, disqualification
or removal from office. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any
incumbent director.
(e) Except as otherwise fixed by or pursuant to provisions of
ARTICLE FOURTH relating to the rights of the holders of any series
of Preferred Stock, the directors shall be elected by the holders
of voting stock and shall hold office until the next annual meeting
of stockholders and until their respective successors shall have
been duly elected and qualified, subject, however, to prior death,
resignation, retirement, disqualification or removal from
office.
(f) Election of directors need not be by written ballot unless
the By-Laws so provide.
(g) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are hereby
empowered to exercise all such powers and do all such acts and
things as may be exercised or done by the Corporation, subject,
nevertheless, to the provisions of the DGCL, this Certificate of
Incorporation, and any By-Laws adopted by the stockholders;
provided, however, that no By-Laws hereafter adopted by the
stockholders shall invalidate any prior act of the directors which
would have been valid if such By-Laws had not been adopted.
ARTICLE SIXTH
Action by Stockholders; Books of the Corporation
(a) Meetings of stockholders may be held within or without the
State of Delaware, as the By-Laws may provide. The books of the
Corporation may be kept (subject to any provision contained in the
DGCL) outside the State of Delaware at such place or places as may
be designated from time to time by the Board of Directors or in the
By-Laws of the Corporation.
-
(b) Written Consent. Certain actions required or permitted to be
taken by the stockholders of the Corporation at an annual or
special meeting of the stockholders may be effected without a
meeting by the written consent of the holders of common stock of
the Corporation (a "Consent"), but only if such action is taken in
accordance with the provisions of this Article Sixth, the
Corporation's By-laws and applicable law.
(i) Record Date. The record date for determining such
stockholders entitled to consent to corporate action in writing
without a meeting shall be as fixed by the Board of Directors or as
otherwise established under this Article Sixth. Any holder of
common stock of the Corporation seeking to have the stockholders
authorize or take corporate action by Consent shall, by written
request addressed to the secretary of the Corporation and delivered
to the Corporation's principal executive offices and signed by
holders of record at the time such request is delivered
representing at least 20 percent (20%) of the outstanding shares of
common stock of the Corporation, request that a record date be
fixed for such purpose._The written request must contain the
information set forth in paragraph (b)(ii) of this Article Sixth.
Following delivery of the request, the Board of Directors shall, by
the later of (x) 20 days after delivery of a valid request to set a
record date and (y) 5 days after delivery of any information
required by the Corporation to determine the validity of the
request for a record date or to determine whether the action to
which the request relates may be effected by Consent under
paragraph (b)(iii) of this Article Sixth, determine the validity of
the request and whether the request relates to an action that may
be taken by Consent and, if appropriate, adopt a resolution fixing
the record date for such purpose. The record date for such purpose
shall be no more than IO days after the date upon which the
resolution fixing the record date is adopted by the Board of
Directors and shall not precede the date such resolution is
adopted. Ha request complying with the second and third sentences
of this paragraph (b)(i) has been delivered to the secretary of the
Corporation but no record date has been fixed by the Board of
Directors by the date required by the preceding sentence, the
record date shall be the first date on which a signed Consent
relating to the action taken or proposed to be taken by Consent is
delivered to the Corporation in the manner described in paragraph
(b)(vi) of this Article Sixth; provided that, if prior action by
the Board of Directors is required under the provisions of Delaware
law, the record date shall be at the close of business on the day
on which the Board of Directors adopts the resolution taking such
prior action.
(ii) Request Requirements. Any request required by paragraph
(b)(i) of this Article Sixth ( a) must be delivered by the holders
of record of at least 20% of the outstanding shares of common stock
of the, who shall not revoke such request and who shall continue to
own not less than 20% of the outstanding shares of common stock of
the Corporation through the date of delivery of Consents signed by
a sufficient number of stockholders to authorize or take such
action; (b) must contain an agreement to solicit
-
Consents in accordance with paragraph (b)(iv) of this Article
Sixth, (c) must describe the action proposed to be taken by written
consent of stockholders and (d) must contain(!) such information
and representations, to the extent applicable, then required by
Section 2.03(b) of the Corporation's By-laws as though such
stockholder was intending to propose an amendment to the
Corporation's Restated Certificate of Incorporation or By-laws or
other business to be brought before a meeting of stockholders and
(2) the text of the proposed action to be taken (including the text
of any resolutions to be adopted by Consent) and ( e) must include
documentary evidence that the requesting stockholder(s) own in the
aggregate not less than 20% of the outstanding shares of common
stock of the Corporation as of the date of such written request to
the secretary; provided, however, that if the stockholder(s) making
the request are not the beneficial owners of the shares
representing at least 20% of the outstanding shares of common stock
of the Corporation, then to be valid, the request must also include
documentary evidence ( or, if not simultaneously provided with the
request, such documentary evidence must be delivered to the
secretary within ten business days after the date on which the
request is delivered to the secretary) that the beneficial owners
on whose behalf the request is made beneficially own at least 20%
of the outstanding shares of common stock of the Corporation as of
the date on which such request is delivered to the secretary. If
the action proposes to elect directors by written consent, the
written request for a record date must also contain the information
required by Section 3.03 of the Corporation's By-laws. The
Corporation may require the stockholder(s) submitting such request
to furnish such other information as may be reasonably requested by
the Corporation. Any requesting stockholder may revoke his, her or
its request at any time by written revocation delivered to the
secretary of the Corporation at the Corporation's principal
executive offices. Any disposition by a requesting stockholder of
any shares of common stock of the Corporation (or of beneficial
ownership of such shares by the beneficial owner on whose behalfthe
request was made) after the date of the request, shall be deemed a
revocation of the request with respect to such shares, and each
requesting stockholder and the applicable beneficial owner shall
certify to the secretary of the Corporation on the day prior to the
record date set for the action by written consent as to whether any
such disposition has occurred. If the unrevoked requests represent
in the aggregate less than 20% of the outstanding shares of common
stock of the Corporation, the Board of Directors, in its
discretion, may cancel the action by written consent.
(iii) Actions Which May Be Taken by Written Consent.
Stockholders are not entitled to act by Consent if (a) the record
date request does not comply with this Article Sixth or the
Corporation's By-Laws; (b) the action relates to an item of
business that is not a proper subject for stockholder action under
applicable law; (c) the request for a record date for such action
is received by the Corporation during the period commencing 90 days
prior
-
to the first anniversary of the date of the immediately
preceding annual meeting and ending on the date of the next annual
meeting; (d) an identical or substantially similar item of business
(as determined by the Board of Directors of the Corporation in its
reasonable determination, which determination shall be conclusive
and binding on the Corporation and its stockholders, (a "Similar
Item")), was presented at a meeting of stockholders held not more
than 12 months before the request is received by the secretary of
the Corporation; ( e) a Similar Item consisting of the election or
removal of directors was presented at a meeting of stockholders
held not more than 90 days before the request is received by the
secretary of the Corporation ( and, for purposes of this clause,
the election or removal of directors shall be deemed a "Similar
Item" with respect to all items of business involving the election
or removal of directors), (f) a Similar Item is included in the
Corporation's notice of meeting as an item of business to be
brought before an annual or special stockholders meeting that has
been called but not yet held or that is called to be held within 90
days after the request is received by the secretary of the
Corporation; or (g) such record date request was made in a manner
that involved a violation of Regulation 14A under the Securities
Exchange Act of 1934 or other applicable law. For purposes of this
paragraph (b)(iii), the nomination, election or removal of
directors shall be deemed to be a Similar Item with respect to all
actions involving the nomination, election or removal of directors,
changing the size of the Board of Directors and filling of
vacancies and/or newly created directorships resulting from any
increase in the authorized number of directors.
(iv) Manner of Consent Solicitation. Holders of common stock of
the Corporation may take action by written consent only if Consents
arc solicited from all holders of common stock of the Corporation
entitled to vote on the matter and in accordance with applicable
law.
(v) Date of Consent. Every Consent purporting to take or
authorize the taking of corporate action must bear the date of
signature of each stockholder who manually signs the Consent, and
no Consent shall be effective to take the corporate action referred
to therein unless, within 60 days of the earliest dated Consent
delivered in the manner required by paragraph (b)(vi) of this
Article Sixth and not later than 120 days after the record date,
Consents signed by a sufficient number of stockholders to take such
action are so delivered to the Corporation.
(vi) Delivery of Consents. No Consents may be dated or delivered
to the Corporation or its registered office in the State of
Delaware until 60 days after the delivery of a valid request to set
a record date. Consents must be delivered to the Corporation by
delivery to its registered office in the State of Delaware or its
principal place of business. Delivery must be made by hand or by
certified or registered mail, return receipt requested. The
secretary of the Corporation shall provide for the safe-keeping of
such Consents and any related revocations and shall promptly
designate one or
-
more persons, who shall not be members of the Board ofDirectors,
to serve as inspectors ("Inspectors"} with respect to such
Consents. The Inspectors shall promptly conduct a ministerial
review of the sufficiency of all Consents and any related
revocations and of the validity of the action to be taken by
written consent as the secretary of the Corporation deems necessary
or appropriate, including, without limitation, whether the
stockholders of a number of shares having the requisite voting
power to authorize or take the action specified in Consents have
given consent. If after such investigation the Inspectors shall
determine that the action purported to have been taken is duly
authorized by the Consents, that fact shall be certified on the
records of the Corporation kept for the purpose of recording the
proceedings of meetings of stockholders and the Consents shall be
filed in such records. In conducting the investigation required by
this section, the Inspectors of the Corporation may, at the expense
of the Corporation, retain special legal counsel and any other
necessary or appropriate professional advisors as such person or
persons may deem necessary or appropriate and, to the fullest
extent permitted by law, shall be fully protected in relying in
good faith upon the opinion of such counsel or advisors.
(vii) Effectiveness of Consent. No action may be taken by the
stockholders by Consent except in accordance with this Article
Sixth. If the Board of Directors shall determine that any request
to fix a record date was not properly made in accordance with, or
relates to an action that may not be effected by Consent pursuant
to, this Article Sixth, or the stockholder or stockholders seeking
to take such action do not otherwise comply with this Article
Sixth, then the Board of Directors shall not be required to fix a
record date and any such purported action by Consent shall be null
and void to the fullest extent permitted by applicable law. No
Consent shall be effective until such date as the Inspectors
certify to the Corporation that the Consents delivered to the
Corporation in accordance with paragraph (vi) of this Article
Sixth, represent at least the minimum number of votes that would be
necessary to take the corporate action at a meeting at which all
shares entitled to vote thereon were present and voted, in
accordance with Delaware law and this Certificate of
Incorporation.
(viii) Challenge to Validity of Consent. Nothing contained in
this Article Sixth shall in any way be construed to suggest or
imply that the Board of Directors of the Corporation or any
stockholder shall not be entitled to contest the validity of any
Consent or related revocations, whether before or after such
certification by the Inspectors, as the case may be, or to
prosecute or defend any litigation with respect thereto.
(ix) Board-solicited Stockholder Action by Written Consent.
Notwithstanding anything to the contrary set forth above, (x) none
of the foregoing provisions of this Article Sixth shall apply to
any solicitation of stockholder action by written consent by or at
the direction of the Board of
-
Directors and (y) the Board of Directors shall be entitled to
solicit stockholder action by written consent in accordance with
applicable law.
ARTICLE SEVENTH
Amendment of Certificate of Incorporation
The Corporation reserves the right to supplement, amend, alter,
change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by the
laws of the State of Delaware and this Certificate of
Incorporation, and all rights conferred upon stockholders,
directors and officers herein are granted subject to this
reservation. Notwithstanding the foregoing, this ARTICLE SEVENTH
and sections (b) and (d) of ARTICLE FIFTH may not be supplemented,
amended, altered, changed, or repealed in any respect, nor may any
provision inconsistent therewith be adopted, unless such
supplement, amendment, alteration, change or repeal is approved by
the affirmative vote of the holders of at least 80% of the combined
voting power of the then outstanding shares of stock of all classes
of the Corporation entitled to vote generally in the election of
directors, voting together as a single class.
ARTICLE EIGHTH
Amendment of By-Laws
In furtherance and not in limitation of the powers conferred
upon it by law, the Board of Directors of the Corporation is
expressly authorized to adopt, repeal, alter or amend the ByLaws of
the Corporation. No By-Laws may be adopted, repealed, altered or
amended in any manner that would be inconsistent with this Amended
and Restated Certificate of Incorporation (as it may be adopted,
repealed, altered or amended from time to time in accordance with
ARTICLE SEVENTH).
ARTICLE NINTH
Limitation of Liability
Except to the extent elimination or limitation of liability is
not permitted by applicable law, no director of the Corporation
shall be personally liable to the Corporation or its stockholders
for monetary damages for any breach of fiduciary duty in such
capacity. Any repeal or modification of this ARTICLE NINTH by the
stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at
the time of such repeal or modification with respect to acts or
omissions occurring prior to such repeal or modification.
ARTICLE TENTH
Liability of Stockholders
The holders of the capital stock of the Corporation shall not be
personally liable for the payment of the Corporation's debts, and
the private property of the holders of the capital stock of the
Corporation shall not be subject to the payment of debts of the
Corporation to any extent whatsoever.
ARTICLE ELEVENTH
-
Effectiveness
This Amended and Restated Certificate of Incorporation is to
become effective at 12:0l a.m. on May 20, 2014.
-
EXIDBITC
AMENDED AND RESTATED
BY-LAWS
OF
DUKE ENERGY CORPORATION
A Delaware corporation
Effective as of January 4, 2016
-
TABLE OF CONTENTS
ARTICLE I Offices
....................................................................................................................................3
Section 1.01. Principal Office
..........................................................................................................
3 Section 1.02. Registered Office and Agent
......................................................................................3
Section 1.03. Other Offices
..............................................................................................................3
ARTICLE II Stockholders
............................................................................................................................3
Section 2.01. Place of Stockholders' Meetings
.................................................................................
3
..................................................3
.....................................................................................3
..............................................................................4
...........................................................................7
............................................................................................8
.......................... 8
..............................................................................................9
........................................................................................................................9
Section 2,10.
.................................................................................................
10
Section 2.12.
Section 2.02. Day and Time of Annual Meetings of Stockholders
Section 2.03, Purposes of Annual Meetings Section 2.04. Special
Meetings of Stockholders Section 2.05. Notice of Meetings of
Stockholders Section 2.06. Quorum of Stockholders Section 2.07.
Presiding Official and Secretary of Meeting; Conduct ofMeetings
Section 2.08. Voting by Stockholders Section 2.09. Proxjes
Section 2.11. List of Stockholders Inspector
...................................................................................................................
I 0
Fixing of Record Date for Determination of Stockholders of
Record ..................... IO
ARTICLE III Directors
...............................................................................................................................
11 Section 3.01. Number and Qualifications
......................................................................................
11 Section 3.02. Chajnnan of the Board
............................................................................................
11 Section 3.03. Election and Term of Directors
................................................................................
12 Section 3.04. ProKy Access for Director Nominations
..................................................................
11 Section 3.05. Newly Created Directorships: Vacancies
.................................................................
18 Section 3.06. Resignation
...............................................................................................................
19 Section 3.07. Meetings of the Board
..............................................................................................
19 Section 3.08. Quorum and Action
..................................................................................................20
Section 3.09. Presiding Director and Secretary of Meeting
...........................................................20
Section 3.10. Action by Consent without Meeting
........................................................................
21 Section 3.11. Compensation of
Directors.......................................................................................
20 Section 3.12. Committees of the Board and Powers
......................................................................
21 Section 3.13. Meetings of Committees
..........................................................................................
21 Section 3.14. Quorum of Committee; Manner of Action
...............................................................21
ARTICLE IV
Officers.................................................................................................................................22
Section 4.01. Elected Officers
........................................................................................................
21 Section 4.02. Election and Term of Office
.....................................................................................
22 Section 4.03. Intentionally Omitted
...............................................................................................
21 Section 4.04. Chief fuecutive
Officer............................................................................................
21 Section 4.05.
President...................................................................................................................22
Section 4.06. Vice Presidents
.........................................................................................................22
Section 4.07. Secretary
...................................................................................................................22
Section 4.08. Treasurer.
..................................................................................................................23
Section 4.09. Controller
.................................................................................................................
23 Section 4.10. Assistant Secretaries. Assistant Treasurers and
Assistant Controllers ..................... 23
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Section 4.11. Removal
...................................................................................................................
23 Section 4.12. Vacancies
.................................................................................................................24
ARTICLE V Indemnification
.....................................................................................................................24
Section 5.01. Power to Indemnify in Actions, Suits or Proceedings
other than Those by or in the
Right of the Coi:poration
...........................................................................................24
Section 5.02. Power to Indemnify in Actions. Suits or Proceedings
by or in the Right of the
C91:Poration...............................................................................................................24
Section 5.03. Authorization of Indemnification
.............................................................................
24 Section 5.04. Good Faith Defined
..................................................................................................
25 Section 5.05. Indemnification by a Court
.......................................................................................
25 Section 5.06. Expenses Payable in Advance
..................................................................................25
Section 5.07. Nonexclusivity of Indemnification and Advancement of
Expenses ........................ 25 Section 5.08. Insurance
..................................................................................................................26
Section 5.09. Certain Definitions
...................................................................................................26
Section 5.10. Survival oflndemnification and Advancement of
Expenses ................................... 26 Section 5.11.
Limitation on Indemnjfication
..................................................................................26
Section 5.12. Indemnification of Employees and Agents
..............................................................
26
ARTICLE VI Cill)ital Stock
........................................................................................................................
27 Section 6.01. Stock Certificates
.....................................................................................................27
Seciion 6.02. Record Ownership
....................................................................................................27
Section 6.03. Transfer of Re.:orcl Ownership
.................................................................................27
Section 6.04. Transfer Agent; Registrar: Rules Respecting
Certificates........................................ 27 Section
6.05. Lost, Stolen or Destroyed Certificates
.....................................................................
27
ARTICLE VII Contracts. Checks and Drafts. Deposits and Proxies
.......................................................... 28
Section 7.01.
Contracts...................................................................................................................28
Section 7.02. Checks and Drafts 28.......
,............................................................................................
Section 7 .03. Deposits
....................................................................................................................28
Section 7 ,04, Proxies
......................................................................................................................28
ARTICLE VIII General Provisions
............................................................................................................
28 Section 8.01. Dividends
.................................................................................................................
28 Section 8.02. Fiscal
Year................................................................................................................28
Section 8.03. Seal
...........................................................................................................................28
Section 8.04. Waivers of
Notice.....................................................................................................
28
ARTICLE IX Amendment ofBy-Laws
......................................................................................................
29 Section 9.01. Amendment
..............................................................................................................
29 Section 9.02. Entire Board of Directors
.........................................................................................
29
ARTICLE X Emergency Provisions
...........................................................................................................
29 Section 10.01. General
.....................................................................................................................
29 Section 10.02. Unavailable Dire.:tors
...............................................................................................29
Section 10.03. Authorized Number of
Directors..............................................................................
29 Section 10.04.
Quorum.....................................................................................................................30
Section 10.05. Creation of Emergency Cornmittee
..........................................................................
30 Section 10.o6. Constitution of Emergency Committee
....................................................................
30 Section 10.07. Powers of Emergency Committee
............................................................................30
Section 10.08. Directors Becoming Available
.................................................................................
30
ii
-
Section 10.09. Election of Board of Directors
.................................................................................
30 Section 10.10. Termination of Emergency Committee
....................................................................
30 Section 10.11. Nonexclusive Powers
...............................................................................................
31
A,\1ENDED AND RESTATED BY-LAWS
OF
DUKE ENERGY CORPORATION
(A CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF
DELAWARE, THE "CORPORATION")
(EFFECTIVE AS OF JANUARY 4, 2016)
ARTICLE I Offices
Section 1.01. Principal Office. The principal office of the
Corporation shall be located in Charlotte, North Carolina.
Section 1.02. Registered Office and Agent. The address of the
registered office of the Corporation in the State of Delaware shall
be 1209 Orange Street, Wilmington, Delaware 1980 I. The name of the
registered agent is The Corporation Trust Company. Such registered
agent has a business office identical with such registered
office.
Section 1.03. Other Offices. The Corporation may have such other
offices either within or without the State of Delaware as the Board
of Directors (the "Board" and each member thereof, a "Director")
may designate or as the business of the Corporatioo may from time
to time require.
ARTICLE II Stockholders
Section 2.01. Place of Stockholders' Meetings. All meetings of
the stockholders of the Corporation shall be held at such place or
places, within or outside the State of Delaware, as may be fixed by
the Board from time to time or as shall he in the respective
notices thereof. The Board may, in its sole discretion, determine
that a meeting of the stockholders shall not be held at any place,
but may instead be held solely by means of remote communication in
the manner authorized by the General Corporation Law of the State
of Delaware (the "DGCL").
Section 2.02. Day and Time of Annual Meetings of Stockholders.
An annual meeting of stockholders shall be held at such date and
hour as shall be determined by the Board and designated in the
notice thereof. Any previously scheduled annual meeting of
stockholders may be postponed by action of the Board taken prior to
the time previously scheduled for such annual meeting of
stockholders.
Section 2.03. Pui:poses of Annual Meetings.Subject to the rights
of the holders of any series of Preferred Stock of the Corporation,
at each annual meeting, the stockholders shall elect the
iii
-
Directors. At any such annual meeting any other business
properly brought before the meeting may be transacted.
(b) To be properly brought before an annual meeting, business
must be (i) specified in the notice of the meeting (or any
supplement thereto) given by or at the direction of the Board, (ii)
otherwise properly brought before the meeting by or at the
direction of the Board or (iii) otherwise properly brought before
the meeting by a stockholder who is a holder of record at the time
of the giving of notice provided for in this Section 2.03(b), who
is entitled to vote at the meeting and who complies with the
procedures set forth in this Section 2.03(b). For business to be
properly brought before an annual meeting by a stockholder, such
business must be a proper matter for stockholder action under
applicable Jaw and the stockholder must have given written notice
thereof, either by personal delivery or by United States mail.
postage prepaid, to the Secretary of the Corporation at the
principal executive offices of the Corporation, not less than 90
days nor more than 120 days prior to the anniversary date of the
immediately preceding annual meeting provided, that the first such
anniversary date occurring after the effective date of these
By-Laws shall be deemed to be May 1, 2006, and provided, further,
that in the event that the date of the annual meeting is more than
30 days before or more than 60 days after such anniversary date,
notice by the stockholder to be timely must be so received not
later than the tenth day following the day on which notice of the
date of the annual meeting was mailed or public announcement of the
date of such meeting is first made by the Corporation, whichever
occurs first. In no event shall the public announcement of an
adjournment of an annual meeting of stockholders commence a new
time period for the giving of a stockholder's notice as described
above. Any such notice shall set fonh as to each matter the
stockholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual
meeting, and, in the event that such business includes a proposal
to amend either the Restated Certificate of Incorporation of the
Corporation (the "Certificate") or these By-Laws, the text of the
proposed amendment, (ii) the name and address, as they appear on
the Corporation's books, of the stockholder proposing such
business, (iii) the class and number of shares of the Corporation
that are beneficially owned by the stockholder, (iv) any material
interest of the stockholder in such business and (v) if the
stockholder intends to solicit proxies in support of such
stockholder's proposal, a representation to that effect. The
foregoing notice requirements shall be deemed satisfied by a
stockholder if the stockholder has notified the Corporation of his
or her intention to present a proposal at an annual meeting and
such stockholder's proposal has been included in a proxy statement
that has been prepared by management of the Corporation to solicit
proxies for such annual meetinl!: provided, however, that if such
stockholder does not appear or send a qualified representative to
present such proposal at such annual meeting, the Corporation need
not present such proposal for a vote at such meeting,
notwithstanding that proxies in respect of such vote may have been
received by the Corporation. No business shall be conducted at an
annual meeting of stockholders except in accordance with this
Section 2.03(b), and the presiding officer of any annual meeting of
stockholders may refuse to permit any business to be brought before
an annual meeting without compliance with the foregoing procedures
or if the stockholder solicits proxies in support of such
stockholder's proposal without such stockholder having made the
representation required by clause (v) of the second preceding
sentence.
Section 2.04. Special Meetings of Stockholders.
(a) Except as otherwise expressly required by the Certificate or
applicable law and subject to the rights of the holders of any
series of Preferred Stock of the Corporation, special meetings of
the stockholders or of any class or series entitled to vote may be
called for any purpose or purposes by the Chairman of the Board or
by the Board of Directors pursuant to a resolution stating the
purpose or purposes thereof, to be held at such place (within or
without the State of Delaware), date and hour as shall be
determined by the Chairman or the Board, as applicable, and
designated in the notice
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thereof. At any such special meeting any business properly
brought before the meeting may be transacted.
(b) Special meetings of the stockholders or of any class or
series entitled to vote may also be called by the Secretary of the
Corporation upon the written request to the Secretary and delivered
by certified mail to the Corporation's principal executive offices
signed by the holders of record at the time such request is
delivered representing at least fifteen percent (15%) of the
outstanding shares of common stock of the Corporation (the
"Requisite Percentage").
(i) Request Requirements. Any request or requests for a special
meeting (a "Stockholder Requested Special Meeting") pursuant lo
paragraph (b) of this Section 2.04 (each, a "Special Meeting
Request" and, collectively, the "Special Meeting Requests"), in the
form required by this section (b)(i) of this Section 2.04, (I) must
be delivered by the holders of record of at least IS% of the
outstanding shares of common stock of the Corporation who have each
held such shares continuously for at least one year prior to the
delivery of the Special Meeting Request, who shall not revoke such
request and who shall continue to own not less than 15% of the
outstanding shares of common stock of the Corporation through the
date of the Stockholder Requested Special Meeting; (2) must provide
a reasonably brief statement of the specific purpose or purposes of
the Stockholder Requested Special Meeting, the matter(s) proposed
to be acted on at the Stockholder Requested Special Meeting and the
reasons for conducting such business at the Stockholder Requested
Special Meeting; (3) must contain (A) such information and
representations, to the extent applicable, then required by Section
2.O3(b) of the Corporation's By-Laws as though such stockholder was
intending to propose an amendment to the Corporation's Cenificate
or By-Laws or other business to be brought before an annual meeting
of stockholders and (B) the text of any resolutions proposed to be
considered and, in the event that such business includes a proposal
to amend the Corporation's By-Laws, the language of the proposed
amendment; (4) must contain an agreement by the requesting
stockholders to notify the Company promptly in the event of any
disposition following tbe date of the Special Meeting Request of
shares of the Company owned by the requesting stockholders and an
acknowledgement that any such disposition prior to the date of the
Stockholder Requested Special Meeting shall be deemed to be a
revocation of such Special Meeting Request with respect to such
disposed shares and that such shares will no longer be included in
determining whether the Requisite Percentage has been satisfied;
and (5) must provide documentary evidence that the requesting
stockholders own in the aggregate not less than IS% of the
outstanding shares of common stock of the Corporation as of the
date of the Special Meeting Request to the Secretary, and have held
such shares continuously for one year prior to the date of the
Special Meeting Request; provided, however, that if tbe
stockholders making the Special Meeting Request are not the
beneficial owners of the shares representing at least LS% of the
outstanding shares of common stock of the Corporation, then to be
valid, the Special Meeting Request must also include documentary
evidence (or, if not simultaneously provided with the request, such
documentary evidence must be delivered to the Secretary by
certified mail within ten business days after the date of the
Special Meeting Request) that the beneficial owners on whose behalf
the Special Meeting Request is made beneficially own at least 15%
of the outstanding shares of common stock of the Corporation as of
the date on which the Special Meeting Request is delivered to the
Secretary and have held such shares continuously for one year prior
lo the Special Meeting Request. If the purpose of the Stockholder
Special Meeting is to elect directors, the Special Meeting Request
must also contain the information and representations required by
Section 3.03 of the Corporation's By-Laws. The Corporation may
require
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the stockholders submitting the Special Meeting Request to
furnish such other information as may be reasonably requested by
the Corporation. Any requesting stockholder may revoke his, her or
its Special Meeting Request at any time prior to the date of the
Stockholder Requested Special Meeting by written revocation
delivered to the Secretary of the Corporation by certified mail at
the Corporation's principal executive offices. If, following such
revocation (or deemed revocation pursuant to clause (4) of Section
2.04(b)(i)), there are unrevoked requests from requesting
stockholders holding in the aggregate less than the Requisite
Percentage, the Board of Directors, in its discretion, may cancel
the Stockholder Requested Special Meeting. If none of the
stockholders who submitted a Stockholder Special Meeting Request
for a Stockholder Requested Special Meeting appears or sends a
qualified representative to present the business proposed to be
conducted at the Stockholder Requested Special Meeting, the
Corporation need not present such business for a vote at such
Stockholder Requested Special Meeting, notwithstanding that
prox.ies in respect of such matter may have been received by the
Corporation.
(ii) Calling of a Stockholder Requested Special Meeting. The
Secretary of the Corporation shall not be required to call a
Stockholder Requested Special Meeting pursuant to Section 2.04(b)
if (1) the Special Meeting Request does not comply with Section
2.04(b); (2) the action relates to an item of business that is not
a proper subject for stockholder action under applicable law; (3)
the Special Meeting Request is received by the Secretary of the
Corporation during the period commencing 90 days prior to the first
anniversary of the date of the immediately preceding annual meeting
and ending on the date of the next annual meeting; ( 4) an
identical or substantially similar item of business, as determined
by the Board of Directors of the Corporation in its reasonable
determination, which determination shall be conclusive and binding
on the Corporation and its stockholders, (a "Similar Item"), was
presented at a meeting of stockholders held not more than 12 months
before the Special Meeting Request is received by the Secretary of
the Corporation; (5) a Similar Item consisting of the election or
removal of directors was presented at a meeting of stockholders
held not more than 90 days before the Special Meeting Request is
received by the Secretary of the Corporation (and, for purposes of
this clause, the election or removal of directors shall be deemed a
"Similar Item" with respect to all items of business involving the
election or removal of directors); (6) a Similar Item is included
in the Corporation's notice of meeting as an item of business to be
brought before an annual or special stockholders meeting that has
been called but not yet held or that is called to be held within 90
days after the Special Meeting Request is received by the Secretary
of the Corporation; or (7) the Special Meeting Request was made in
a manner that involved a violation of Regulation 14A under the
Securities Exchange Act of 1934 or other applicable law. For
purposes of this paragraph (b)(ii), the nomination, election or
removal of directors shall be deemed to be a Similar Item with
respect to all actions involving the nomination, election or
removal of directors, changing the size of the Board of Directors
and filling of vacancies and/or newly created directorships
resulting from any increase in the authorized number of
directors.
(c) Except as provided in the next sentence, any special meeting
shall be held at such date, time and place, within or without the
State of Delaware, as may be fixed by the Board of Directors in
accordance with Section 2.12 of these By-Laws and the DGCL. In the
case of a Stockholder Requested Special Meeting, following delivery
of a Special Meeting Request, the Board of Directors shall, by the
later of (x) 20 days after delivery of a valid Special Meeting
Request and (y) five days after delivery of any information
required by the Corporation to determine the validity of the
Special Meeting
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Request or the purpose to which the Special Meeting Request
relates under paragraph (b)(ii) of this Section 2.04, determine the
validity of the Special Meeting Request, and, if appropriate, adopt
a resolution fixing the record date for such Stockholder Requested
Special Meeting. Special meetings of stockholders called pursuant
to this Section 2.04(b) shall be held at such place, on such date,
and at such time as the Board of Directors shall fix; provided;
however, that the Stockholder Requested Special Meeting shall not
be held more than 90 days after receipt by the Company of a valid
Special Meeting Request. In fixing a date and time for any
Stockholder Requested Special Meeting the Board of Directors may
consider such factors as it deems relevant within the good faith
exercise of business judgment, including, without limitation, the
nature of the matters to be considered, the facts and circumstances
surrounding any request for meeting and any plan of the Board of
Directors to call an annual meeting or a special meeting.
(d) To be properly brought before a special meeting, business
must be (i) specified in the notice of the meeting (or any
supplement thereto) given by or at the direction of the Board or
(ii) otherwise properly brought before the meeting by or at the
direction of the Board. Business transacted at any Stockholder
Requested Special Meeting shall be limited to the purpose(s) stated
in the Stockholder Special Meeting Request(s); provided, however,
that nothing herein shall prohibit the Board of Directors from
submitting matters to the stockholders at any Stockholder Requested
Special Meeting. No business shall be conducted at a special
meeting of stockholders except in accordance with this Section
2.04(d) or as required by applicable law.
Section 2.05. Notice of Meetings of Stockholders. Whenever
stockholders are required or permitted to take any action at a
meeting, unless notice is waived in writing by all stockholders
entitled to vote at the meeting, a written notice of the meeting
shall be given which shall state the place, if any, date and hour
of the meeting, the means of remote communication, if any, by which
stockholders and proxy holders may be deemed to be present in
person and vote at such meeting, and in the case of a special
meeting, the purpose or purposes for which the meeting is
called.
In lieu of and/or in addition to the foregoing, notice of any
meeting of the stockholders of the Corporation may be given via
electronic transmission, to the fullest extent permitted by Section
232 of the DGCL. To be valid, such electronic transmission notice
must be in a form of electronic transmission to which the
stockholder has consented. Any stockholder can revoke consent to
receive notice by a form of electronic transmission by written
notice to the Corporation. Such consent shall be deemed revoked if
(i) the Corporation is unable to deliver by electronic transmission
two consecutive notices given by the Corporation in accordance with
such consent and (ii) such inability becomes known to the Secretary
or an Assistant Secretary or to the transfer agent or other person
responsible for the giving of notice; provided, however, the
inadvertent failure to treat any such undeliverable notices as a
revocation shall not invalidate any meeting or other action.
"Electronic transmission" shall mean any form of communication, not
directly involving the physical transmission of paper, that creates
a record and that may be retained, retrieved, and reviewed by a
recipient thereof, and that may be directly reproduced in paper
form by such a recipient through an automated process.
Unless otherwise provided by law, and e:\cept as to any
stockholder duly waiving notice, the written notice of any meeting
shall be given personally, by mail, or by a form of electronic
transmission consented to by the stockholder to whom notice is
given, not less than 10 days nor more than 60 days before the date
of the meeting to each stockholder entitled to vote at such
meeting. If mailed, notice shall be deemed given when deposited in
the United States mail, postage prepaid, directed to the
stockholder at his or her address as it appears on the records of
the Corporation. If by a forrn of electronic transmission, notice
shall be deemed given when transmitted to the stockholder in
accordance with the provisions set forth herein; provided. however.
that if the electronic transmission notice is posted on an
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electronic network (e.g., a website or chatroom), notice shall
be deemed given upon the later of (A) such posting and (B) the
giving of separate notice of the posting to the stockholder.
Except as otherwise expressly required by applicable law, notice
of any adjourned meeting of stockholders need not be given if the
time, place, if any, thereof, and the means ofremote
communications, if any, by which stockholders and proxy holders may
be deemed to be present in person and vote at such adjourned
meeting are announced at the meeting at which the adjournment is
taken.
Section 2.06. Quorum of Stockholders.
(a) Unless otherwise expressly required by the Certificate or
applicable law, at any meeting of the stockholders, the presence in
person or by proxy of stockholders entitled to cast a majority of
the votes entitled to be cast thereat shall constitute a quorum for
the entire meeting, notwithstanding the withdrawal of stockholders
entitled to cast a sufficient number of votes in person or by proxy
to reduce the number of votes represented at the meeting below a
quorum. Shares of the Corporation's stock belonging to tbe
Corporation or to another corporation, if a majority of the shares
entitled to vote in an election of the directors of such other
corporation is held by the Corporation, shall neither be counted
for the purpose of determining the presence of a quorum nor be
entitled to vote at any meeting of the stockholders: provided,
however, that the foregoing shall not limit the right of the
Corporation to vote stock, including its own stock, held by it in a
fiduciary capacity.
(b) At any meeting of the stockholders at which a quorum shall
be present, a majority of those present in person or by proxy may
adjourn the meeting from time to time. Whether or not a quorum is
present, the officer presiding thereat shall have power to adjourn
the meeting from time to time, Except as otherwise expressly
required by applicable law, notice of any adjourned meeting other
than announcement at the meeting at which an adjournment is taken
shall not be required to be given,
(c) At any adjourned meeting, any business may be transacted
that might have been transacted at the meeting originally called,
but only those stockholders entitled to vote at the meeting as
originally noticed shall be entitled to vote at any adjournment or
adjournments thereof unless a new record date is fixed by the
Board.
Section 2.07. Presiding Official and Secretary of Meeting;
Conduct of Meetings.
(a) The Chairman of the Board or, in his or her absence, the
Chief Executive Officer or, in the absence of the Chairman of the
Board and the Chief Executive Officer, an officer of the
Corporation designated by the Chairman of the Board, shall preside
at meetings of the stockholders. The Secretary or an Assistant
Secretary of the Corporation shall act as secretary of the meeting,
or if neither is present, then tbe presiding officer may appoint a
person to act as secretary of the meeting.
(b) The Board may to the extent not prohibited by law adopt such
rules and regulations for the conduct of the meeting of the
stockholders as it shall deem appropriate. Except to the extent
inconsistent with such rules and regulations as adopted by the
Board, the presiding officer of any meeting of the stockholders
shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the
judgment of such presiding officer, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures,
whether adopted by the Board or prescribed by the presiding officer
of the meeting, may to the extent not prohibited by law include